CKY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1623

CKY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1623

Leave to rely on a new ground of appeal and adduce fresh evidence was refused because the decision not to advance the ground below was a deliberate and conscious forensic choice by the appellant’s previous legal representatives, and the new ground was inconsistent with the way the appellant had advanced his claims before prior decision-makers. There was no material indicating the appellant’s claims included a right to return to Iraq or a well-founded fear of harm if returned to Iraq. The claim for protection had been correctly assessed on the basis of Iran as the receiving country.

Jurisdiction
Australia
Judgment Date
16 December 2021
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed
Legal Topics
['judicial Review' 'appeal' 'fresh Evidence' 'statelessness' 'habitual Residence']
['administrative Law' 'migration Law'] ['judicial Review' 'appeal' 'fresh Evidence' 'statelessness' 'habitual Residence']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether leave should be granted to rely on a new ground of appeal not advanced below' 'Whether leave should be granted to adduce fresh evidence on appeal' 'Whether the Immigration Assessment Authority failed to assess claims relating to the right to return to Iraq and status as country of habitual residence']

Ratio Decidendi

Leave to rely on a new ground of appeal and adduce fresh evidence was refused because the decision not to advance the ground below was a deliberate and conscious forensic choice by the appellant’s previous legal representatives, and the new ground was inconsistent with the way the appellant had advanced his claims before prior decision-makers. There was no material indicating the appellant’s claims included a right to return to Iraq or a well-founded fear of harm if returned to Iraq. The claim for protection had been correctly assessed on the basis of Iran as the receiving country.

Court Disposition

Appeal dismissed

Orders

  • ['The application for leave to rely upon a new ground be refused.' 'The application to adduce fresh evidence pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) be refused.' 'The appeal be dismissed.' 'The appellant to pay the costs of the first respondent, such costs to be taxed in default of...